1
Fair Work Act 2009
s 394—Unfair dismissal
Jeffory Power
v
Girudala Community Co-Operative Society
(U2018/2127)
DEPUTY PRESIDENT SAMS SYDNEY, 20 JUNE 2018
Application for an unfair dismissal remedy – late application by one day – representative
error – consideration of exceptional circumstances – applicant not responsible for late
lodgement – admissions of legal representative – no follow up for further two weeks –
representative error constituted exceptional circumstances – other factors considered –
extension of time granted.
BACKGROUND
[1] Mr Jeffory Power was dismissed from his employment as a Maintenance Person with
Girudala Community Co-Coperative Society (‘Girudala’) on 6 February 2018. The applicant
was dismissed when he returned from annual leave despite being warned in a letter, dated 19
January 2018, from the Chief Executive Officer, Ms Michelle Hook, on behalf of the Board of
Directors, that if he failed to return to work on 24 January 2018, it would be considered
serious misconduct, warranting summary dismissal. For the purposes of this decision it is
unnecessary to further canvass the detail surrounding the circumstances leading up to the
applicant’s dismissal.
[2] There was some controversy as to the date of the applicant’s dismissal. The applicant
claimed he was not dismissed until he received a letter on 8 February 2018 terminating his
employment. The respondent claimed he was told by Ms Hook of his dismissal in the car park
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DECISION
E AUSTRALIA FairWork Commission
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of the employer’s premises on 31 January 2018; although in its F3 response to the application,
it is said he was notified of his dismissal on 6 February 2018 and it took effect that day.
[3] In any event, it appeared the parties accepted the applicant’s s 394 application for
unfair dismissal was not lodged with the Fair Work Commission (the ‘Commission’) within
21 days of the dismissal taking effect, in that it was filed at least one day late. Accordingly,
the applicant sought an extension of time for the filing of his application, pursuant to s 394(3)
of the Fair Work Act 2009 (the ‘Act’). This decision will determine that jurisdictional
objection.
[4] The matter was listed for hearing on 9 May 2018. Mr R Hall-Boman, Advocate,
Queensland Chamber of Commerce and Industry, appeared for the objector and Ms Vernon,
Solicitor, appeared for the applicant with permission being granted for him to be represented
by a lawyer, pursuant to s 596 of the Act.
Legislation Framework
[5] Section 394(2) of the Act requires that an unfair dismissal application must be made
within 21 days after the dismissal took effect, or such further period the Commission allows
under s 394(3). That subsection sets out the circumstances in which the Commission may
allow a further period (effectively an ‘extension of time’) within which the application may be
made. It reads as follows:
(3) The FWC may allow a further period for the application to be made by a person
under subsection (1) if the FWC is satisfied that there are exceptional circumstances,
taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken
effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
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(f) fairness as between the person and other persons in a similar position.
[6] Statutory limitations on the time for filing applications in Courts and Tribunals are
intended to have a specific public policy and natural justice purpose. This was explained by
the High Court in a judgement of McHugh J in Brisbane South Regional Health Authority v
Taylor (1996) 186 CLR 541:
“The discretion to extend time must be exercised in the context of the rationales for
the existence of limitation periods. For nearly 400 years, the policy of the law has been
to fix definite time limits (usually six but often three years) for prosecuting civil
claims. The enactment of time limitations has been driven by the general perception
that “[w]here there is delay the whole quality of justice deteriorates.”
and
“The effect of delay on the quality of justice is no doubt one of the most important
influences motivating a legislature to enact limitation periods for commencing actions.
But it is not the only one. Courts and commentators have perceived four broad
rationales for the enactment of limitation periods. First, as time goes by, relevant
evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to
allow an action to be brought long after the circumstances which gave rise to it have
passed. Third, people should be able to arrange their affairs and utilise their resources
on the basis that claims can no longer be made against them. Insurers, public
institutions and businesses, particularly limited liability companies, have a significant
interest in knowing that they have no liabilities beyond a definite period.”
and
“In enacting limitation periods, legislatures have regard to all these rationales. A
limitation period should not be seen therefore as an arbitrary cut off point unrelated to
the demands of justice or the general welfare of society. It represents the legislature’s
judgment that the welfare of society is best served by causes of action being litigated
within the limitation period, notwithstanding that the enactment of that period may
often result in a good cause of action being defeated. Against this background, I do not
see any warrant for treating provisions that provide for an extension of time for
commencing an action as having a standing equal to or greater than those provisions
that enact limitation periods. A limitation provision is the general rule; an extension
provision is the exception to it.”
and
“The discretion to extend should therefore be seen as requiring the applicant to show
that his or her case is a justifiable exception to the rule that the welfare of the State is
best served by the limitation period in question. Accordingly, when an applicant seeks
an extension of time to commence an action after a limitation period has expired, he or
she has the positive burden of demonstrating that the justice of the case requires that
extension.”
[7] In the Fair Work Act, two sections, (both in relatively identical terms), are frequently
invoked: section s 366(2) in respect to the filing of a late General Protections application and
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s 394 in respect to a late Unfair Dismissal application. In both cases, the statutory time period
is 21 days. To be successful, both sections are predicated on a finding by the Commission of
‘exceptional circumstances’. The test of ‘exceptional circumstances’ has been held to be a
‘high hurdle’ for an applicant; see: Lombardo v Commonwealth of Australia as represented
by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288
at [21]. In addition, a decision under s 394(3) involves an exercise of the Commission’s
discretion; see: Halls v KR & MA McCardle & Sons Pty Ltd & Ors [2014] FCCA 316. The
approach to deciding whether ‘exceptional circumstances’ are made out in a particular case, is
to attribute to the term its ordinary, commonsense meaning and may encompass
circumstances which:
(a) are out of the ordinary course, unusual, special or uncommon, but not necessarily
unique, unprecedented or rare; or
(b) may involve a single exceptional matter, a combination of exceptional factors or a
combination of ordinary factors, that when taken together, are exceptional.
[8] These characteristics have their foundation in the well known case of Nulty v Blue Star
Group Pty Ltd [2011] FWAFB 975 (‘Nulty’) where a Full Bench of the Commission, (albeit
in a s 366(2) case, stated:
‘In summary, the expression “exceptional circumstances” has its ordinary meaning
and requires consideration of all the circumstances. To be exceptional, circumstances
must be out of the ordinary course, or unusual, or special, or uncommon but need not
be unique, or unprecedented, or very rare. Circumstances will not be exceptional if
they are regularly, or routinely, or normally encountered. Exceptional circumstances
can include a single exceptional matter, a combination of exceptional factors or a
combination of ordinary factors which, although individually of no particular
significance, when taken together are seen as exceptional. It is not correct to construe
“exceptional circumstances” as being only some unexpected occurrence, although
frequently it will be. Nor is it correct to construe the plural “circumstances” as if it
were only a singular occurrence, even though it can be a one off situation. The
ordinary and natural meaning of “exceptional circumstances” includes a combination
of factors which, when viewed together, may reasonably be seen as producing a
situation which is out of the ordinary course, unusual, special or uncommon.’
and
“A finding that there are “exceptional circumstances”, taking into account the matters
specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend
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time is enlivened. That is, even when “exceptional circumstances” are established,
there remains a discretion to grant or refuse an extension of time. That discretion
should be exercised having regard to all the circumstances including, in particular, the
matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration
of whether, given the exceptional circumstances found, it is fair and equitable that
time should be extended”.
THE EVIDENCE
[9] I turn now to the evidence of this case. The applicant provided two statements - from
himself and his Solicitor, Ms Peta Vernon. The respondent tendered the statement of Ms
Michelle Hook.
The applicant
[10] In his statement, the applicant said that he first attended the office of his Solicitor,
Ruddy Tomlins & Baxter on 24 January 2018, in relation to a letter received from his
employer, concerning his intention to take annual leave, without providing the employer with
one month’s notice (the ‘warning letter’). Annexed to the applicant’s statement was a Client
Information Sheet he completed on 24 January 2018, in respect to his contract with the
Solicitor.
[11] The applicant made further contact with his Solicitor by telephone on 1 February
2018, and again in person on 5 February 2018 to seek advice in relation to a meeting
scheduled with his employer on the following day. At the 5 February 2018 meeting, the
applicant and his Solicitor prepared submissions ‘in support of [his ongoing] employment
with Girudala’.
[12] The applicant was advised of his dismissal in a letter he received on 8 February 2018.
Later that day, the applicant met with his Solicitor to instruct her to prepare an unfair
dismissal application. On 14 February 2018, the applicant was advised by his Solicitor that
the application for unfair dismissal would be completed and filed on that day. The applicant
had a reasonable belief that the application had been filed within the requisite time period.
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[13] In cross examination, Mr Hall-Boman drew the applicant’s attention to the Client
Information Sheet filled out for his Solicitor. The applicant confirmed that the Sheet had been
held by his Solicitor, and not by him. He stated that while he had seen the Sheet before, his
sister had ‘filled it out’ for him. Mr Hall-Boman put to the applicant that his oral evidence
contradicted his written evidence in that he was the person who completed the Sheet. The
applicant responded that he was with his sister while she completed the Sheet.
[14] Much of Mr Hall-Boman’s questioning dealt with inconsistencies in the applicant’s
oral and written evidence. When asked if the applicant had completed his written submissions,
he responded that he completed the submissions with his Solicitor on 5 February 2018. Mr
Hall-Boman asked whether the submissions, which predated his actual notification of
termination on 8 February 2018, disclose that he expected to be dismissed. The applicant
responded that he was terminated on 31 January 2018, upon return from his holiday. He stated
‘they sent me a letter saying that on the 24th, if I didn’t rock up for work, my employment
would be terminated’. Mr Hall-Boman referred the applicant to his submissions where it is
said that he believed he was verbally dismissed on 31 January 2018. He agreed with this
conclusion.
[15] The applicant confirmed that Ms Vernon was the Solicitor he had been communicating
with from the firm Ruddy, Tomlins and Baxter. He could not recall the nature of the phone
call or conversation he had with Ms Vernon on 14 February 2018.
Ms Peta Vernon
[16] Ms Vernon is a Solicitor of Ruddy Tomlins and Baxter. In her statement, Ms Vernon
said that she was contacted by the applicant on, or about 24 January 2018, regarding his
ongoing employment with his employer. On 8 February 2018, Ms Vernon became aware that
the applicant was terminated. She was instructed to prepare and lodge an unfair dismissal
application on his behalf.
[17] On 14 February 2018, Ms Vernon prepared the application and uploaded supporting
documentation to the Commission website. Annexed to her statement was a copy of the
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application, dated 14 February 2018, affixed with her signature. Ms Vernon stated that after
she lodged the application, she ‘was to await contact by the Fair Work Commission within the
following three days to seek payment for the application’. She informed the applicant that the
application would be lodged that day (14 February 2018).
[18] On 1 March 2018, Ms Vernon phoned the Commission to enquire as to the status of
the application, as she had not received an acknowledgment of its receipt. When she was
informed the application did not exist, she immediately attended to lodging the application.
[19] In cross examination, Ms Vernon was asked about the method she used to fill out and
submit the application. It was her evidence that she submitted the application through the
Commission’s online portal, not email. She ‘filled in the gaps and answered all the questions,
then proceeded to scan in the supporting documentation’. After she pressed the submission
button, either a screen or a message appeared stating that she ‘would be contacted within three
days for payment of the application fee’. Obviously this did not happen. Ms Vernon conceded
that ‘whatever [she] did on 14 February was incorrect because the Commission didn’t
receive the application’. Ms Vernon confirmed that between 14 February 2018 and 1 March
2018, she made no further enquiries with the Commission.
[20] Ms Vernon was asked about the process she used to resubmit the application on 1
March 2018. She explained that a Commission staff member provided phone instructions on
how to submit the application online, and when she got to the final page of the online portal,
‘it was completely different and I had to input a credit card number and the like to pay’. This
alerted her to the fact that she made an error on 14 February 2018. Unlike the unsuccessful
application, when she resubmitted the application on 1 March 2018, she ‘immediately
received a matter number and the like which indicated that it had been successfully lodged’.
Ms Vernon stated there were no changes to the application when it was submitted on 1 March
2018, other than including an explanation for the delay in lodgement.
[21] Ms Vernon was asked if she had previously lodged other applications or
documentation of this nature with the Commission. She stated that she had done it before by
email ‘without doing it online and relying on it in that way’. She confirmed all
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communication with the applicant in relation to submitting the claim occurred on 14 February
2018.
[22] Ms Vernon recalled that there was another person in the meeting on 5 February 2018
between herself and the applicant, not disclosed in her written statement. The applicant had
requested Ms Vernon’s advice in relation to a meeting scheduled at Girudala. The applicant
wanted Ms Vernon to attend with him, but it was instead arranged that the applicant’s friend
would attend.
Ms Michelle Hook
[23] Michelle Hook is the Chief Executive Officer (CEO) of Girudala. She was employed
on 14 April 2011. Much of Ms Hook’s written statement went to the merits of the applicant’s
substantive case, and given this decision deals only with the ‘out of time’ application, Ms
Hook’s merit arguments are relevant only in a preliminary way, pursuant to s 394(3)(e) of the
Act (which I will turn to shortly). Relevantly though, Ms Hook states that she met with the
applicant on 5 February 2018 and sent a letter of termination on 6 February 2018. Ms Hook
was not required for cross-examination.
SUBMISSIONS
For the applicant
[24] Ms Vernon submitted that the applicant’s case fell neatly within the ‘exceptional
circumstances’ criteria set out in 394(3) of the Act, in that:
the application was not submitted in time due to her error, which was ‘immediately
rectified’ on 1 March 2018. The applicant had made a genuine attempt to file the
unfair dismissal application within the requisite period (s 394(3)(a));
the applicant was informed of his dismissal on 6 February 2018, when it was
emailed to him and also sent by registered post. The posted document arrived on 8
February 2018 (s 394(3)(b));
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the applicant instructed her to prepare an unfair dismissal application on 8 February
2018. Ms Vernon believed she had lodged the application on 14 February 2018, and
upon being made aware, on 1 March 2018, that this was not so, she immediately
lodged the application (s 394(3)(c));
the employer has failed to demonstrate that it has been prejudiced by the delayed
lodgement of the application. Moreover, the period between 14 February 2018 and
1 March 2018 was only two weeks. This is a reasonable time to have not made
enquiries with the Commission (s 394(3)(d));
the merits of the application warrant an extension of time in that the applicant’s
dismissal was unfair as he was terminated for ‘serious misconduct’, yet his conduct
does not satisfy the definition of serious misconduct set out in Regulation 1.07 of
the Fair Work Regulations 2009 (s 394(3)(e); and
the application was lodged one day outside the 21 day timeframe for lodging unfair
dismissal applications, which is not an unreasonable period of delay so as to cause
undue hardship or prejudice to either the applicant or the respondent. Nor can it be
said that the delay would cause difficulty for the Commission in deciding the
application (s 394(3)(f)).
[25] Ms Vernon submitted that Davidson v Aboriginal and Islander Child Care Agency
(2000-2001) 105 IR 1 (‘Davidson’) stood for the proposition that the applicant’s conduct is
relevant as to whether representative error is an acceptable reason for the delay. It was
submitted that the applicant took all reasonable steps to ensure that his application was lodged
within the requisite time period of 21 days.
[26] Ms Vernon also submitted that McFarlane v Northern SEQ Distributor – Retailer
Authority t/a Unitywater [2018] FWC 1296 (‘McFarlane’) was analogous to the facts of this
case. In McFarlane, Deputy President Dean granted an extension of time application on the
basis that the applicant was entitled to rely upon his legal representative to act on his
instructions; the representative’s delay in filing could not be attributed to the applicant.
Similarly, here the applicant took the requisite action and provided relevant instructions to her
within the requisite time period.
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For the respondent
[27] Mr Hall-Boman submitted that s 394(3) of the Act and Clark v Ringwood Private
Hospital 378/98 M Print P9767 [1998] AIRC 394 [418-420] were relevant to the
Commission’s consideration of representative error in an extension of time application.
Addressing the ‘exceptional circumstances’ criteria spelled out in s 394(3) of the Act, Mr
Hall-Boman made the following submissions:
(a) The applicant had provided conflicting dates as to when he instructed Ms Vernon
to prepare his unfair dismissal application in his submissions to Deputy President
Dean on 13 April 2018, in his witness statement of 26 April 2018 and in his
application for unfair dismissal on 1 March 2018. The respondent submitted that
the anomalies demand scrutiny as they ‘are critical in determining whether there
are exceptional circumstances’. In fact, if the Commission is satisfied that the
applicant did not make contact with Ms Vernon after the 6th, 7th or 8th of
February 2018 to enquire as to the status of his application, this conduct ‘would
weigh against the granting of an extension of time’ (s 394(3)(a)).
(b) The parties do not dispute that the applicant first became aware of his dismissal
on 31 January 2018. This weighs against the granting of an extension of time (s
394(3)(b)).
(c) The applicant did not ‘defend the threat of dismissal as vigorously as he claims’.
He did not prepare submissions for the meeting on 5 February 2018, nor did he
put the respondent on notice that he intended to dispute the dismissal (s
394(3)(c)).
(d) Citing Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300 (‘Brodie-
Hanns v MTV Publishing’), the absence of prejudice to the respondent is an
insufficient basis to grant an extension of time (s 394(3)(d)).
(e) Citing Kyvelos v Champion Socks Pty Ltd Print T2421, the Commission should
not embark on a detailed consideration of the substantive case in determining
whether exceptional circumstances are present. However, contested evidence
will require the Commission to carefully consider the applicant’s witness
statements and other evidence (s 394(3)(e)).
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(f) Section 394(3)(f) of the Act is a neutral factor.
[28] Mr Hall-Boman put that taking into account all of the matters under s 394(3) of the
Act, the Commission should dismiss the applicant’s application for want of jurisdiction.
CONSIDERATION
[29] Earlier, I dealt with the legislative provisions and general principles dealing with ‘out
of time’ applications under s 394(3) of the Act. As will be readily apparent, this case relied on
the conduct (or lack thereof) of the applicant’s Solicitor, Ms Vernon, as demonstrating
representative error, and therefore constituting an ‘exceptional circumstance’, justifying the
Commission’s exercise of discretion to extend the time for the filing of the applicant’s unfair
dismissal application.
[30] That representative error may constitute ‘exceptional circumstances’ for the purposes
of s 394(3) of the Act has been considered and accepted by the Commission and its
predecessors in numerous cases on the point. In Robinson v Interstate Transport Pty Ltd
[2011] FWAFB 2728 (‘Robinson v Interstate’), a Full Bench helpfully set out this history at
[24] to [25] as follows:
‘[24] The approach to representative error as an acceptable explanation for late
lodgement has been considered by Full Benches of Fair Work Australia and its
predecessors in the context of various Acts. The approach followed was first set out by
a Full Bench in Clark v Ringwood Private Hospital (1997) 74 IR 413 (‘Clark’s
Case) in the context of the exercise of a discretion to extend time under s.170CE(8) of
the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench
in Davidson’s Case Print Q0784 in relation to s.170CFA(8) of the WR Act. More
recently, a majority of the Full Bench in McConnell v A & PM Fornataro t/a Tony's
Plumbing Service [2011] FWAFB 466 found that the approach remained apposite to
the exercise of the discretion in s.366(2) of the Act; McConnell v A & PM Fornataro
t/a Tony's Plumbing Service [2011] FWAFB 466, at para [35]. We too think that the
approach in Clark’s Case provides appropriate guidance for consideration of
representative error in the context of the exercise of the discretion within s.366(2) of
the Act. We think that representative error, in circumstances where the applicant was
blameless, would constitute exceptional circumstances under s.366(2), subject to
consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.
[25] The approach in Clark’s Case was summarised in Davidson’s Case as follows:
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‘In Clark the Commission decided that the following general propositions
should be taken into account in determining whether or not representative error
constitutes an acceptable explanation for delay:
(i) Depending on the particular circumstances, representative
error may be a sufficient reason to extend the time within which an
application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to
an applicant’s representative where the applicant is blameless and delay
occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding
whether representative error provides an acceptable explanation for the
delay in filing the application. For example it would generally not be
unfair to refuse to accept an application which is some months out of
time in circumstances where the applicant left the matter in the hands of
their representative and took no steps to inquire as to the status of their
claim. A different situation exists where an applicant gives clear
instructions to their representative to lodge an application and the
representative fails to carry out those instructions, through no fault of the
applicant and despite the applicant’s efforts to ensure that the claim is
lodged.’’
[31] In my view, this case is relatively straightforward and can be readily dispatched by
reliance on the candid and helpful evidence of Ms Vernon when she made the following
admissions:
1. ‘Evidently, whatever I did on 14 February [2018] was incorrect, because the
Commission didn’t receive the application.’
2. Question: ‘So what occurred between 14 February and 1 March?’
Answer: ‘Nothing.’
3. Question: ‘Had you made any enquiries during that time at all?’
Answer: ‘Not during that time, no.’
[32] I accept Ms Vernon had genuinely believed she had sent the application on 14
February 2018 and may have been unfamiliar with lodging applications on the Commission’s
online portal. Nevertheless, it is abundantly clear she took no steps to follow up the
lodgement for another 15 days, in circumstances when she must have known a filing fee was
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required within three days. Ms Vernon gave no explanation as to why she waited so long to
make further inquiries. Had she done so, the application may well have been filed within time.
[33] That said, throughout the relevant period, and in the lead up to his dismissal, the
applicant was entitled to rely on Ms Vernon’s professional advice and representation to ensure
his application was filed within time. There was no basis for him to be blamed for not
following up his application when he had left all the details to Ms Vernon. In Robinson v
Interstate, the Full Bench was faced with a similar set of circumstances. At para [30] to [31],
the Full Bench said:
‘[30] Mr Robinson arranged legal advice three days after the termination of his
employment. At that time Mr Robinson requested that Mr Tayler prepare a client
agreement for his consideration and upon receiving the agreement, he executed the
agreement on 13 May 2010, within a week of its receipt. On the day he executed the
agreement, Mr Robinson instructed Mr Tayler to file a general protections application
on his behalf. It is unsurprising that Mr Robinson, having instructed his representative
to lodge his application, relied upon the representative to give effect to his
instructions. To suggest the failure of Mr Robinson to take any action in relation to the
lodgement of his application, after instructing his legal representative to do so and
having complied with all of the representative’s requirements for accepting
instructions, represents inaction on his part, unreasonably imposes a further
responsibility upon him beyond his action of providing clear instructions to Mr Tayler
to lodge his application.
[31] As noted by a Full Bench in D La Rosa v Motor One Group Pty Ltd, in the
context of s.170CE of the WR Act:
‘As is evident from Clarke, little might be required to satisfy the Commission
that the applicant was blameless in the delay. In the context of a relatively short
delay, it may simply be a matter of establishing that the applicant gave
instructions to lodge [in this case] a Notice of Election and thereafter left
matters in the hands of his or her representative.’’
See also: Lawless v Hooper Family Trust t/a Barron River Towing [2018] FWC 2202 per
Asbury DP.
[34] For the reasons just expressed, I am satisfied that the applicant has provided a credible
and acceptable explanation for the delay in filing his unfair dismissal application. It grounds a
finding that the delay was caused by representative error for which he was entirely blameless.
In my view, this finding constitutes ‘exceptional circumstances’ and weighs in favour of the
Commission granting an extension of time.
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Other matters under s 394(3) of the Act
Whether the person first became aware of the dismissal after it had taken effect (s
394(3)(b))
[35] I am satisfied that the applicant was first made aware of the likelihood of his dismissal
on 31 January 2018 and he was formally advised of his dismissal by letter dated 6 February
2018. This is a neutral factor in the matter.
Any action taken by the person to dispute the dismissal (s 394(3)(c))
[36] The applicant not only took action to dispute his dismissal by engaging a solicitor to
act on his behalf and instructing her to lodge an unfair dismissal application, he had
foreshadowed the possibility of disciplinary action when he received the warning letter of 19
January 2018 and then made contact with Ms Vernon. He continued to make contact and meet
with his Solicitor in early February 2018 following his exchange with Ms Hook in the carpark
on 31 January 2018. This factor weighs in favour of the granting of an extension of time.
Prejudice to the employer (including prejudice caused by the delay) (s 394(3)(d))
[37] I do not understand the respondent has raised any prejudice, let alone significant
prejudice to it by the delay in dealing with, and responding to the applicant’s unfair dismissal
application. Of course, the mere absence of prejudice to the employer is an insufficient basis
to grant an extension of time; see: Brodie-Hans v MTV Publishing.
[38] Given the relatively short delay in the filing of the application (1 day), I am satisfied
that no prejudice will be occasioned upon the respondent by extending the time for filing the
application. This factor weighs in favour of granting an extension of time.
The merits of the application (s 394(3)(e))
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[39] In the matter of Kornicki v Telstra-Network Technology Group Print P3168, the
Commission considered the principles applicable to the exercise of the discretion to extend
time under s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the
Commission said:
‘If the application has no merit then it would not be unfair to refuse to extend the time
period for lodgement. However we wish to emphasise that a consideration of the
merits of the substantive application for relief in the context of an extension of time
application does not require a detailed analysis of the substantive merits. It would be
sufficient for the applicant to establish that the substantive application was not without
merit.’
[40] After considering the limited material filed by the parties, much of which appears to
be uncontested as to the factual circumstances, and the reasons for dismissal being
characterised as serious misconduct, I am not satisfied the application is devoid of merit; at
least in respect to whether the dismissal for his admitted conduct warranted summary
dismissal. This factor weighs in favour of an extension of time being granted.
Fairness as between the person and other persons in a similar position (s 394(3)(f))
[41] A Full Bench of the Commission in Perry v Rio Tinto Shipping Pty Ltd [2016] FWCB
6963 considered this criterion and said at para [41]:
‘[41] Finally, we turn to consider fairness as between the Appellant and other persons
in a similar position. Cases of this kind will generally turn on their own facts.
However, this consideration is concerned with the importance of the application of
consistent principles in cases of this kind, thus ensuring fairness as between the
Appellant and other persons in a similar position. This consideration may relate to
matters currently before the Commission or matters previously decided by the
Commission.’
[42] Given the relatively unusual circumstances surrounding the applicant’s dismissal, the
issue of fairness between the applicant and other persons in a similar position, is not a relevant
consideration in this case. Accordingly, this is a neutral factor in this case.
CONCLUSIONS
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[43] In my view, the applicant’s circumstances were out of the ordinary course, unusual,
special and uncommon; see: Nulty at [13]. He acted swiftly and diligently to instruct a
solicitor to file his unfair dismissal application on time. He had no reason to believe his
solicitor would not do so, or enquire as to whether it had been done. The reason for the delay
rested wholly on Ms Vernon. Taken together with the other factors I have considered under s
394(3) of the Act, leads to a compelling conclusion that ‘exceptional circumstances’ have
been met in this case.
[44] With that threshold having been satisfied, I consider it appropriate, and in the interests
of justice, to exercise my discretion to extend time for this application to be filed beyond the
21 day time limit under s 394(2) of the Act. Accordingly, the application for an extension of
time is granted. The respondent’s jurisdictional objection is dismissed. I order that matter
U2018/2127’s time for lodgement be extended to 1 March 2018. The matter will be remitted
for further programming. However, given the uncontested circumstances of this matter, I
strongly recommend the parties engage in negotiations with a view to settling the applicant’s
claim.
DEPUTY PRESIDENT
Appearances:
Ms P Vernon for the applicant.
Mr R Hall-Boman for the respondent.
Hearing details:
2018.
Sydney:
9 May.
ORK WORK COMMISSION FAIR THE SEAL OF
[2018] FWC 3375
17
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